In Texas your own uninsured/underinsured motorist coverage steps in. Under Brainard v. Trinity Universal, your insurer owes nothing until you establish the other driver’s liability and your damages. UM/UIM must be offered on every auto policy, and your rejection had to be in writing – so check your declarations page.
First: Check Whether You Have UM/UIM. You Probably Do
Texas Insurance Code §1952.101 requires uninsured/underinsured motorist coverage to be offered with every auto liability policy, and a rejection must be in writing. A verbal decline or an unchecked box in a phone conversation does not satisfy the statute. If your carrier cannot produce a signed written rejection, the coverage question is worth pressing.
Pull the declarations page of your automobile insurance policy and look for “UM,” “UIM,” or “UM/UIM” with limits beside it. A large number of Texas drivers carry this coverage without knowing it, because it was included by default and never affirmatively rejected.
UM/UIM follows the person more than the car. It generally covers you while driving your own vehicle, riding as a passenger in someone else’s, and as a pedestrian or cyclist struck by a vehicle, and it commonly extends to resident family members. The exact scope is in the policy language – have it read carefully before assuming you are not covered.
Uninsured Is Not the Usual Problem. Underinsured Is
Texas minimum financial responsibility limits are 30/60/25 under Transportation Code §601.072.
One surgery and a short hospital admission can exceed $30,000 before anyone talks about lost income or pain and suffering. When the at-fault driver carries the state minimum and your damages are larger, the gap is filled by underinsured motorist coverage up to your own limits.
That is why most serious claims involving a “they didn’t have enough insurance” problem are UIM claims rather than true uninsured claims. Both live in the same coverage on your policy, and both are governed by the same rules below.
Texas minimum limit
What it covers
$30,000
Bodily injury, per person
$60,000
Bodily injury, total per crash
$25,000
Property damage, per crash
Texas minimum liability limits, Transportation Code §601.072.
The Brainard Rule: Your Insurer Owes Nothing Until You Prove the Case
This is the part people find genuinely surprising. Under *Brainard v. Trinity Universal Insurance Co. (Tex. 2006), a UM/UIM insurer has no obligation to pay until the insured establishes the other driver’s liability and the amount of damages*. Until that happens the benefits are not owed, no matter how clearly the other driver caused the crash.
Practically, sending your own carrier a demand package does not create an enforceable obligation to pay it. Liability and damages are established by obtaining a judgment against the uninsured driver, or by litigating the UM/UIM claim against your own insurer. Your carrier is entitled to contest fault and to contest the value of your injuries, exactly as the other driver’s insurer would have.
It is your insurance company and you paid the premiums, and the claim is still adversarial. That is not an accusation of bad faith – it is the structure Texas law creates. It also explains a common frustration: the carrier that was quick to handle your vehicle damage goes quiet on the injury claim.
Allstate v. Irwin and Attorney’s Fees
That structure used to leave insureds with an expensive problem. To get paid you had to litigate, and litigating came out of the recovery. In *Allstate Insurance Co. v. Irwin (Tex. 2021), the Texas Supreme Court held that an insured may use a declaratory judgment action to establish the other driver’s liability and damages, and may recover attorney’s fees* under Civil Practice and Remedies Code §37.009.
That changed the leverage. A carrier that will not seriously evaluate a UIM claim now faces potential fee exposure on top of the benefits themselves. The award is discretionary – §37.009 says a court “may” award fees that are equitable and just – but the possibility is a real factor in how UM/UIM claims get resolved.
One procedural point matters throughout: many policies require the insured to obtain the carrier’s consent before settling with the at-fault driver. Settling for the other driver’s limits without that consent can jeopardize the UIM claim. Get the consent in writing first.
Hit and Run, Phantom Vehicles, and What Else May Pay
UM coverage also responds when the at-fault driver is never identified. Policies typically require physical contact with the unknown vehicle, or independent corroboration of a phantom vehicle that forced you off the road without touching you. An uncorroborated account of a car that never made contact is where these claims usually fail.
Report a hit and run to police immediately and obtain the crash report. Your policy’s notice provisions are contractual, and late notice is a defense your own insurer can raise.
Other coverages may sit alongside UM/UIM if your policy includes them – personal injury protection (PIP) and medical payments coverage both pay medical expenses without regard to fault, and health insurance covers treatment while liability is being sorted out. These are often the fastest money available after a crash with an uninsured driver.
The Uninsured Driver’s Exposure, and Yours
Driving without insurance in Texas is a fine-only offense under Transportation Code §601.191, generally $175 to $350 for a first violation. It produces a citation, not a recovery. Uninsured drivers also rarely have assets worth pursuing, which is the entire reason UM/UIM coverage exists.
If you were the uninsured one when someone else hit you, you can still recover. Texas has no “no pay, no play” law. Being uninsured does not bar your claim against the at-fault driver, and the citation is a separate, fine-only matter. What you lose is your own UM/UIM protection if the other driver turns out to have nothing.
UM/UIM claims are contractual claims against your own carrier, and they are handled differently from ordinary liability claims. Jim Ross Law Group offers a free consultation at 817-275-4100 and can review your declarations page with you; there is no fee unless we win.
Frequently Asked Questions
How do I know if I have uninsured motorist coverage?
Look at declarations page of your automobile insurance policy for “UM,” “UIM,” or “UM/UIM” with dollar limits next to it. If it is absent, ask your carrier for the signed written rejection – Texas Insurance Code §1952.101 requires the coverage to be offered and requires any rejection to be in writing. A carrier that cannot produce one has a problem worth examining.
What is the difference between uninsured and underinsured motorist coverage?
Uninsured applies when the at-fault driver has no liability coverage at all, or cannot be identified in a hit and run. Underinsured applies when they have coverage but not enough – the common situation, since Texas minimum bodily injury coverage is $30,000 per person. Both are normally written together in the same UM/UIM coverage on your policy.
Can my own insurance company deny my UM claim?
It can contest it, which amounts to the same thing early on. Under Brainard v. Trinity Universal, a UM/UIM carrier owes nothing until the insured establishes the other driver’s liability and the amount of damages. Your carrier may dispute fault, dispute the reasonableness and/or necessity of treatment, and dispute value – the same defenses the at-fault driver’s insurer would raise.
Do I have to sue my own insurance company to get UM benefits?
Often, in some form. Because benefits are not owed until liability and damages are established, the practical routes are a judgment against the uninsured driver or litigation against your own carrier. After Allstate v. Irwin, that can be brought as a declaratory judgment action. Many claims still resolve without trial once the file is properly developed.
Who pays my attorney's fees in a UM/UIM case?
Texas law allows a court to award them against the insurer. In Allstate Insurance Co. v. Irwin (2021), the Texas Supreme Court permitted an insured to seek a declaratory judgment establishing liability and damages and to recover attorney’s fees under CPRC §37.009. The award is discretionary, not automatic – a court awards fees that are equitable and just.
What if the at-fault driver had only the Texas minimum coverage and my damages exceed the minimum limit?
That is an underinsured motorist claim. Their $30,000 per-person bodily injury limit gets paid first, and your UIM coverage addresses the shortfall up to your own limits. Before accepting the at-fault driver’s policy limits, check whether your policy requires your carrier’s written consent to settle – settling without it can jeopardize the UIM claim.
Does uninsured motorist coverage apply to a hit and run in Texas?
Yes, but with conditions. UM responds to an unidentified driver, and policies typically require physical contact with the unknown vehicle or independent corroboration when a phantom vehicle ran you off the road without touching you. Call police from the scene, get the crash report started, and identify any witnesses immediately – corroboration decides these claims.
Can I still recover if I was driving without insurance when I was hit?
Yes. Texas has no “no pay, no play” law, so your own lack of coverage does not bar a claim against the driver who caused the crash. Driving uninsured is a fine-only offense under Transportation Code §601.191, generally $175 to $350 for a first violation, handled entirely separately from your injury claim.
This page is for general information only and is not legal advice. Reading it does not create an attorney-client relationship. Every case is different and past results do not guarantee or predict a similar outcome in any future case. Jim Ross Law Group, P.C., 2201 E Lamar Blvd #110, Arlington, TX 76006.